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Predicated upon minority participation rates, there is no doubt that African- Americans are underrepresented among the ranks of head football coaches at FBS institutions. However, as previously explained, this comparison has no utility in a legal proceeding. In addition, because of the volunteer nature of the NCAA, there is little that can be done by the Association to compel member schools to adopt a Rooney-type rule. Consequently, pursuing legal redress through the EEOC and the courts via the filing of Title VII actions is an option. This option does, however, come with a major caveat. As demonstrated by the outcomes in such litigation, adherents of this strategy should be encouraged to affect change through other means. What, then, are some other possible solutions?

As noted earlier in this paper, some level of information asymmetry might be associated with the search process. Institutional presidents and athletic directors, who do most of the hiring, might not have the network or knowledge of who the top up-and- coming minority coaches are despite the best efforts of the NCAA and the BCA to keep them informed. In the case of the BCA, it has already been established that they do not readily communicate with university personnel until an opening is confirmed.385 In the case of Texas A&M, it was shared during a general presentation session that Bill Byrne had decided who he was going to pursue approximately three months prior to Dennis Franchione’s resignation.386 For those who truly seek it, there are sources of information available to institutions looking to fill coaching vacancies. The BCA is an organization

385

See supra note 343 and accompanying text.

386

that is available and desires to be consulted when institutions are developing their applicant pools. However, the potential drawbacks associated with utilizing the BCA and other similar organizations can be significant. First, utilization of outside groups, particularly ones with agendas, be these agendas perceived or actual, can mitigate the control the institution and its representatives have over the decision making process.387 Outside consultants might not be as sensitive to the broad-base constituencies and dynamics of the respective athletic departments; therefore, they might make hiring recommendations entirely consistent with the agenda they came in with.388 Thus, these groups might be as pre-disposed toward certain candidates as the institutions might be.

Second, university presidents and athletic directors might fear the potential negative publicity they and their programs might receive if they do not choose the candidate that the outside consulting group endorsed. Choosing the best person for the job is a process of balancing numerous criteria and is always going to be a subjective determination. By using a group such as the BCA, universities and their search

387

For more information regarding the BCA’s normative prescription for how to run a search process, consult Floyd Keith’s prepared statement before Congress. Among the criteria for an institution to receive an “A” grade from the BCA includes 30% of the hiring committee to be minority, 30% of interviews to be granted to minority candidates (qualifications of candidates not addressed), and a minimum search length in excess of two weeks. Keith, supra note 93, at 6.

388

This is not to say that it is within the purview of hiring personnel to not choose a minority candidate because they do not feel that a minority would not be accepted by an institution’s fan base. Customer preferences have never been allowed to establish a bona fide occupational qualification (BFOQ) in the sex or gender context. It is firmly established legal doctrine that racial criteria can never be used to support a proffered BFOQ. See Diaz v. Pam Am World Airways, 442 F.2d 385, 388 (5th Cir. 1971) (citing that stated customer preferences for female flight attendants is not sufficient to establish a BFOQ. Thus, this evidence was not exculpatory in an action challenging Pan Am’s female-only flight attendant hiring patterns. Among the requirements for establishing a sex-related BFOQ, the Fifth Circuit noted that “the essence of the business operation would [have to] be undermined by not hiring members of one sex exclusively.”) (emphasis omitted).

committees might be pressured to give overriding consideration to a candidate’s race thereby handicapping their ability to define and choose the best person for the job.

Another opportunity for institutions to narrow the information gap is to utilize the resources of the NCAA via the Men’s Coaches Academy and the Expert Football Coaches Academy. The Men’s Coaches Academy, which began in 2003, “addresses the critical shortage of ethnic minorities in head coaching positions in college football, primarily at the Division I-A level.”389 The topics discussed during the three day conference include: communication skills, fiscal responsibilities, program building, compliance, and academic related issues.390 It is hoped that the minority assistant coaches who participate in the respective academies will be better prepared to present themselves as viable candidates for head coaching vacancies. Of course, the other aspiration is that athletic directors and presidents will take notice of the participants and place their names in a database of prospective candidates for future head coaching opportunities.391 It is this author’s assertion, however, that participants in the academies must be more assertive in conveying their interest in prospective head coaching positions. Through the unofficial grapevine, many coaches are aware of potential openings far in advance of public notice. Therefore, it is incumbent upon prospective candidates to relay their interest soon after becoming aware of potential openings if not for any other reason than to create legal standing in a prospective Title VII suit. It is a better aspiration for such notice, however, that the individual expressing interest will

389

NCAA Invites 30 to Men’s Coaches Academy, available at http://www.ncaasports.com/story/10230789 (last visited June 20, 2007).

390

Id.

391

receive consideration should an opening actually develop or that his name will be passed along to those presidents and athletic director who are seeking to hire head coaches.

By making use of outside consulting groups and the NCAA’s Men’s Coaches and Expert Football Coaches Academies, the extant information asymmetry does not have to hinder the development of adequate pools of qualified minority applicants. However, utilization of these resources may lead to protracted searches which, as previously discussed, are not something universities are inclined to do - especially when searching for head coaches of revenue sport teams.392

There is another strategy that might be considered, and it is one that can address some of the concerns related to hiring minority head coaches. Rather than pushing for FBS member schools to hire more minority head coaches, perhaps the emphasis should be on placing qualified minorities in head coaching positions at the Football Championship Subdivision (FCS) level. Again, one of the areas of concern in hiring minorities at top-level programs is their lack of head coaching experience and brand equity. Most administrators operate under the assumption that past head coaching success is an indicator of future head coaching success. This philosophy was evident when the University of North Texas, a FBS member of the Sunbelt Conference, recently

392

A great example of the sense of urgency in hiring occurred in the spring of 2007. On Thursday, March 22, head Kentucky basketball coach, Tubby Smith announced he was leaving UK to coach at Minnesota. Kentucky subsequently asked for and received permission to talk to Texas A&M head coach Billy Gillispie on Thursday, April 5. They announced Gillispie as the new head coach the following day. Texas A&M athletic director, Bill Byrne then announced Wichita State’s Mark Turgeon as the Aggies’ new coach on Tuesday, April 10. See Andy Katz, Smith Leaving Kentucky to Coach Minnesota, ESPN.COM, Mar. 23, 2007, available at http://sports.espn.go.com/ncb/news/story?id=2808406 (last visited July 12, 2007); Pat Forde, Wildcats to Introduce Gillispie on Friday, ESPN.COM, Apr. 6, 2007, available at http://sports.espn.go.com/ncb/news/story?id=2827764 (last visited July 12, 2007); Texas A&M University Press Release, Turgeon Named Texas A&M Men’s Basketball Coach, Apr. 10, 2007, available at

hired Todd Dodge from Southlake Carroll High School in Denton, Texas, to become the university’s sixteenth head football coach.393 While at Southlake Carroll and competing at the 5A level, Dodge accumulated a record of 79-1 and won four state championships.394 In addition to his Southlake Carroll and other high school coaching experiences, Dodge served as offensive coordinator at North Texas for the 1992 and 1993 seasons.395

Perhaps the paradigm of achieving success at the FCS level then moving on to the FBS level is Ohio State University’s Jim Tressel. Prior to his arrival in Columbus in 2001, Tressel spent fifteen years at perennial FCS power Youngstown State University. While at Youngstown State, Tressel accumulated a record of 135-57-2, made 10 playoff appearances, and participated in the national championship game six times, winning four.396 Tressel’s success has continued during his seven seasons at Ohio State. His record going into the 2008 season is 73-16.397 His Ohio State teams have gone to seven bowls - five of them BCS including three national championship games - won four Big Ten Conference titles and one national championship.398

The more exclusive the organization, the more protectionist members of that organization will be. Although FCS member schools are not considered top-level

393

Todd Dodge Biography, available at http://www.meangreensports.com/ViewArticle.dbml?SPSID=905 1&SPID=562&DB_OEM_ID=1800&ATCLID=723249&Q_SEASON=2007 (last visited June 20, 2007).

394

Id.

395

Id.

396

2006 YOUNGSTOWN STATE UNIV. FOOTBALL MEDIA AND RECRUITING GUIDE, Jim Tressel’s Lasting

Legacy, at 88.

397

Jim Tressel Biography available at http://www.ohiostatebuckeyes.com/ViewArticle.dbml?SPSID=877 43&SPID=10408&DB_OEM_ID=17300&atclid=1059367 (last visited May 20, 2008). See also, BCS National Championship Game Post Game Notes, Jan. 8, 2008, available at http://www.ohiostatebuckeyes. com/ViewArticle.dbml?SPSID=87745&SPID=10408&DB_OEM_ID=17300&ATCLID=1364787 (last visited Feb. 12, 2008).

398

programs, as we have seen in the cases of Todd Dodge and Jim Tressel, it is hard to argue with success. Although Dodge and Tressel are White, their experiences should disprove any notion that positions at the FCS level, or lower, preclude the chance to make it to the elite level of coaching.

If the only thing minority head coach advocates care about is placing individuals in the highest paying jobs, then the idea of what is “right” becomes a little less clear. If, however, the true fight is for opportunity then that must be the overarching objective and efforts must be focused on all levels of intercollegiate football and not just the level that has the highest exposure and remuneration. Sport films capture the imagination because, in the end, the underdog overcomes the highest obstacles to defeat the team with the most affluence and privilege. That is the substance of the American dream and the American spirit. This not to say that some highly talented people have been overlooked and to accept a position at the lower levels of competition would not be the best use of their talent. However, FCS institutions and student-athletes need talented coaches too. Affecting change to ingrained systems such as hiring processes that disadvantage minorities requires a holistic perspective. If the objective is to provide more of a presence of minority head coaches in football, then it might require the martyrdom of some very qualified individuals. One need only look to the intercollegiate athletic gender equity movement and the history of the Association of Intercollegiate Athletics

for Women (AIAW) to see that sacrifices will have to be made and will continually have to be made.399

Whether or not FCS member schools would be more welcoming of minority candidates compared to FBS member schools is yet to be determined. However, from the standpoint of litigation, it might be easier to take on a smaller institution with a more limited budget rather than a flagship state university with much higher levels of resources and a full staff of attorneys. In addition, if a candidate were to in effect litigate his way to a head coaching appointment, the level of pressure and scrutiny that individual would face at a major university might mitigate or even preclude his ability to be successful.

Change did not happen overnight in the pursuit of equality for women in intercollegiate athletics. Change occurred as a result of Title IX after plaintiffs, both female coaches as well as female athletes, filed suits to demand equality under the statute’s provisions. As commented on earlier, the analogy between Title IX and Title VII must be considered circumspectly. Despite the “Dear Colleague” letters that tend to obfuscate standards for compliance, Title IX’s boundaries represent much brighter lines than those of Title VII.

However, an increase in African-American coaches at FBS schools might be realized through the utilization of legal remedies such as Title VII. It is hoped the information given herein has provided a much more realistic perspective on the use of

399

CARPENTER & ACOSTA, supra note 376, at 175 (writing that prior to the passage of Title IX over 90% of women’s programs were coached and administered by females. By 2004, only 44.1% of women’s teams had a female head coach. Also in 2004 women held only 41% of all administrative positions in athletics departments in which there were women’s team participating in intercollegiate competition.).

Title VII as some type of statutory savior. This is especially so given the special parameters for litigation that Keith has placed on bringing a case. Much like his overconfidence for winning a Title VII action, Keith’s hope for the perfect plaintiff seems to be somewhat out of touch with reality.400 Whoever the plaintiff is, it is conceded that the individual could be risking his coaching career by filing a Title VII complaint.401

Those preferring this path should realize that, as demonstrated by the history of Title IX, litigation is rarely an expedient solution. Given the sense of urgency promulgated through the statements of individuals like Dr. Myles Brand, Rev. Jesse Jackson, and Dr. Richard Lapchick, protracted litigation in this instance would seem to be an unacceptable alternative. It appears that fear of litigation rather than actual litigation is the currency of change for many advocates. However, the threats of litigation to date have gone largely unheeded by most FBS athletic administrators.

400

See Maravent & Tario, supra note 141, at 46 (quoting Keith “It [the plaintiff coach] can’t be just anybody; it has to be a marquee name.”).

401

Id. (quoting Keith “It’s going to take a Curt Flood [type of person].”). Curt Flood challenged Major League Baseball’ reserve clause in a battle that ended up going to the U.S. Supreme Court in Flood v. Kuhn, 407 U.S. 258 (1972). Although Flood lost the court battle, he is generally credited with bringing about free agency in professional sports. However, his activism came with a price. His major league baseball career ended soon after beginning his legal actions challenging the reserve clause. Of course, many prospective Title VII plaintiffs fear retaliation not only by a single employer, but by the profession.

See LANCE C. HATFIELD, Potential Lawsuit Lurks in Liberty U. Athletic Dept., 7 LEGAL ISSUES

COLLEGIATE ATHLETICS 3 (2004) (discussing a terminated college volleyball coach who was considering filing a Title VII complaint alleging sex discrimination. The coach stated that “When you are looking for a job, you are afraid of any stigma that might attach immediately and long-term as a result of filing a complaint of gender discrimination. As a parent and someone who wants to continue in the profession, you have to make sure that you make the right decisions.”). Fears of retaliation are not unfounded. One of the causes of action in the Banks case was for retaliation. The court noted evidence that one member of a head coach selection committee provided Banks with the lowest scores possible on the selection criteria. In a section of the evaluation reserved for comments, the member wrote “Law suit v. own school!!” Banks v. Pocatello Sch. Dist. No. 25, 429 F. Supp.2d 1197, 1205 (D. Idaho 2006).

Finally, is a collegiate equivalent to the NFL’s Rooney Rule the answer? While advocates have made statements to that effect, it is reasonable to infer that many commentators will view the rule just as suspect on the college level as they do on the professional level. Many will probably view the interviews of racial minorities as simply following the rules to avoid any extant penalties.402 In fact, this criticism was leveled against the University of Alabama when the university hired Mike Shula rather than Sylvester Croom. It is important to note that Alabama did formally interview both Shula and Croom. It was only when Shula was chosen over Croom that Alabama’s interview process was criticized.403 In addition, there is the potential that many prospective head coaching minority candidates will not interview if they perceive that the institution is merely going through the motions. In a recent communication exchange with Dr. Dennis Phillips, professor and Faculty Athletics Representative (FAR) at the University of Southern Mississippi, it was shared that this type of challenge was faced when Southern Miss was trying to build its applicant pool for head football coach after Jeff Bower’s resignation. Dr. Phillips noted the hiring committee tried to interview a particular minority who was under the misguided impression that Southern Miss had already made a decision on who they wanted as head coach. Despite the committee’s protestations to contrary, the individual told the committee that he would not interview.404 The university

402

Consider the rhetoric surrounding the Miami Dolphins’ interview of Art Shell in 2004 when it was fairly well known that the organization wanted LSU’s Nick Saban all along. See Michael Smith, supra note 60.

403

John Zenor, Alabama Finally Unveils Shula as Home-Grown Hope, USA TODAY, May 9, 2003,

available at http://www.usatoday.com/sports/college/football/sec/2003-05-09-shula_x.htm. Rev. Jesse

Jackson is quoted referring to Alabama’s interview process as “smoke and mirrors”.

404

E-mail from Dr. Dennis R. Phillips, Associate Professor of Sport Management at the University of Southern Mississippi, to author (December 8, 2007, 10:41 a.m., EDT) (on file with author). Dr. Phillips

later hired Larry Fedora, who is White, and came to Southern Miss after spending three seasons as an offensive coordinator at Oklahoma State.405

There appears to be a developing trend in intercollegiate and professional sports